Opinion
19322.
ARGUED MAY 14, 1956.
DECIDED JUNE 11, 1956.
Injunction; contempt. Before Judge Perryman. McDuffie Superior Court. March 5, 1956.
Randall Evans, Jr., for plaintiff in error.
Stevens Stevens, B. J. Stevens, Robert Stevens, contra.
Where, after giving the notice provided for in Code (Ann. Supp.) § 24-3384, and in preparation of making a survey as contemplated by said section, a surveyor employed by the defendant merely walks upon the land to be surveyed, and neither he nor the defendant commits any act in disregard of or hostile towards the possession of one claiming the land as owner, such conduct is not inconsistent with the peaceful possession of the owner, and would not constitute a violation of an injunction which restrained the defendant "from in anywise interfering with the peaceful enjoyment of said" land.
ARGUED MAY 14, 1956 — DECIDED JUNE 11, 1956.
Mrs. Mamie M. Guy brought her petition in McDuffie Superior Court against George Poss (plaintiff in error), and Charles Elam, a surveyor, praying that they be adjudged in contempt of court for violating a restraining order which had issued from that court against Poss in an equitable action for land brought against him, and which "temporarily and permanently enjoined and restrained [him] from in anywise interfering with the peaceful enjoyment of said 110 acres of land or any part thereof." To the petition the defendant Poss filed general and special demurrers and an answer. (The demurrers are not included in the record submitted to this court and are not passed upon, but this fact is immaterial in view of the ruling hereinafter made.) The surveyor, Elam, was discharged. Poss excepted to the judgment overruling his general demurrer and certain special demurrers, and to the judgment finding him in contempt of court for violating that portion of the restraining order quoted above.
On March 3, 1955, the superior court had enjoined Poss until further order of the court, as follows: "That the defendant be both temporarily and permanently enjoined and restrained from in anywise interfering with the peaceful enjoyment of said 110 acres of land or any part thereof; that he be so enjoined from interfering with the sale of timber or land, and that he be enjoined and restrained from doing any other injury to the trees." Other portions of the order are not material to this case. Thereafter, on or about January 24, 1956, the defendant served a written notice on Mrs. Guy that on February 6, 1956, Charles Elam, an engineer and surveyor of Lincoln County, would survey the tracts of land described in exhibits attached to the notice, which tracts had formed the basis of the restraining order above quoted. At the time he delivered the notice to Mrs. Guy, the defendant stated to her, "We are just going to make a survey of the land." On February 7, 1956, rain having prevented making the survey on the 6th, Elam, with an order of the Court of Ordinary of McDuffie County designating him to make the survey in the place of the County Surveyor of McDuffie County, who was disqualified to act in this case, went to the land in question after having been told by the defendant that one W. T. Fluker could give him information about the property.
At the trial Elam testified that he walked upon the land in question in an effort to orient himself and to locate the corners, that he did not make a survey or attempt to do so, that he cut no trees and left no marks on the land of any kind except what tracks he might have made in the soil, and this evidence of Elam is uncontradicted.
Construing the evidence most strongly against the defendant, the most it can be said to show is that he, either directly or through his attorneys, had Elam appointed County Surveyor of McDuffie County in accordance with Code § 23-1115; that he served a notice upon Mrs. Guy as provided by Code (Ann. Supp.) § 24-3384, which section reads as follows: "No survey shall be received in evidence, unless it appears that at least 10 days' notice of the time of commencing such survey was given to the opposite party by the one who offers it in evidence. Either party to an action may have a survey made, without an order of court, upon giving the required notice"; and that what Elam did was done in preparation of making the survey.
Poss's actions in this case did not, in our opinion, constitute an interference with the peaceful enjoyment of her property by Mrs. Guy. He was not enjoined from going upon the property; and the trial court found that Poss did not interfere with the sale of timber on the land and did not do any injury to the trees.
Enjoyment of the land as used in the court's restraining order means use or possession. Peaceful enjoyment is synonymous with peaceable possession. Peaceable possession is based upon a claim of right and is contradistinguished from disputed or hostile possession. Crosbie v. National Bank of Commerce, 86 Okla. 174 ( 207 P. 311). The acts of the defendant Poss were not in disregard of or hostile towards the claim of ownership of Mrs. Guy. Going upon the land for the sole purpose of making a survey is not inconsistent with Mrs. Guy's peaceful enjoyment of her land. What was prohibited by the injunctive order was something more than mere physical presence.
Counsel have not cited us, nor have we found, any cases defining "peaceful enjoyment" of land. In Gittens v. Lowry, 15 Ga. 336, 338, it was held that the term "peaceable possession" in the Dormant Judgment Act of 1822 had "a meaning very similar to, if not the same [as] the words `quiet enjoyment', in a covenant for quiet enjoyment. And to constitute a breach of a covenant for quiet enjoyment, there must be an actual ouster." And in Dillon v. Mattox, 21 Ga. 113, this court held that entering upon a tract of land for the purpose of making a survey is not evidence that will support a claim of adverse possession and is perfectly consistent with an acknowledgment of the better title of the other party.
In the absence of an order expressly forbidding a survey, or forbidding the going upon the land of Mrs. Guy, and in the absence of evidence that the acts of the defendant and his agent, Elam, were hostile towards Mrs. Guy or in dispute of her right of ownership or of peaceful enjoyment, the trial court erred in adjudging Poss in contempt of court for violating the order against interfering with the peaceful enjoyment of Mrs. Guy's land.
Judgment reversed. All the Justices concur.